Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

COMPETENCY TO STAND TRIAL (ME078)

Also see Insanity.

Basics

Obligation to determine competency

Standards; Determination

Other issues

R.C. 2945.37 -- Definitions; hearing on competency to stand trial.

R.C. 2945.371 -- Evaluation of defendant's mental condition at relevant time; separate mental retardation

evaluation.

R.C. 2945.39 -- Proceedings after expiration of maximum time for treatment after finding of incompetency.

R.C. 2945.401 -- Continuing jurisdiction of court after incompetency finding or insanity acquittal; application of

other laws; termination of commitment or change in conditions.

R.C. 2945.402 -- Conditional release.

Indiana v. Edwards (2008), 128 S.Ct. 2379 – An individual may be competent to stand trial but not competent to undertake self-representation. Court approves state court requirement of representation by an attorney in such circumstances.

State v. Williams, 179 Ohio App. 3d 584, 2008-Ohio-6245 – Trial court found defendant was not competent to stand trial and unrestorable to competency within one year. Instead of dismissing the indictment as ordinarily required, pursuant to R.C. 2945.39 it further found by clear and convincing evidence that he committed the offense with which he was charged and retained jurisdiction. R.C. 2945.39 applies only to some high level felonies. Court of Appeals finds the provision unconstitutional. Case pending before the Supreme Court as No. 2008-2424.

In re A.N., 181 Ohio App. 3d 793, 2009-Ohio-1873 – That a parent may be incompetent is not a bar to proceeding with termination of parental rights proceedings. In any event, counsel stipulated a report finding his client competent.

In re Bailey, 150 Ohio App. 3d 664, 2002-Ohio-6792 -- Examiner concluded juvenile was not competent to stand trial as an adult if bound over, but was competent to enter an admission in juvenile court. Court rejects the prosecutor's claim the same standard guides both determinations, but reverses because trial court failed to specifically find the juvenile was competent to enter an admission. Also see In re Williams (1997), 116 Ohio App. 3d 237, 242.

In re B.M.S., 165 Ohio App. 3d 609, 2006-Ohio-981 -- Report indicated juvenile's competency was highly suspect, though age equivalent. Court erred by not conducting a hearing on competency.

In re Gooch, Montgomery App. No. C.A. 19339, 2002-Ohio-6859 -- Decisions concerning competency to stand trial are outcome-determinative and are not subject to invited error analysis. Trial counsel stipulated juvenile was competent.

State v. Bellatto, Mahoning App. No. 00 CA 141, 2003-Ohio-1214, ¶17 -- "Once a plea of not guilty by reason of insanity is entered, defendant's counsel must file a motion for a competency hearing...Failure to file a pretrial motion for a competency hearing waives the right to such a hearing...Further, a defendant affirmatively waives his right to a previously requested competency hearing when he withdraws his plea of not guilty by reason of insanity...The Supreme Court of Ohio has also held that the right to a competency hearing rises to the level of a constitutional guarantee only when the record contains sufficient indicia of incompetence."

State v. Cardinal, Franklin App. Nos. 04AP-229 through 233, 2004-Ohio-6605 -- Sua sponte order of competency evaluation was not warranted. Defense counsel did not question competency and the defendant's behavior in court was not erratic. Grounds cited after the fact by the prosecutor are commonplace. Evaluation appears to have been a stall to provide more time to work out a plea bargain in a case involving numerous charges.

Pate v. Robinson (1966), 383 U.S. 375 -- Conviction of a legally incompetent person is a violation of due process.

Drope v. Missouri (1974), 420 U.S. 162 -- It is a denial of due process to proceed with trial when the defendant's conduct is such as to place his competency in doubt. Correct course is to suspend trial until evaluation can be made. Among other things, trial court characterized hospitalization following suicide attempt as voluntary absence from the courtroom after the trial had commenced.

State v. Filiaggi (1999), 86 Ohio St. 3d 230 -- Lorain County deputies fitted the defendant with a stun belt for the trip to the courthouse for the beginning of his trial for capital murder. According to the opinion, "En route, defendant was accidentally shocked by the stun belt." After being given Valium he waived jury. As the trial proceeded he believed he continued to receive shocks from the belt and the issue of competency was raised. Court finds no abuse of discretion in findings of competency and denial of mistrial motions, faulting defense counsel for not doing more (in the midst of a death penalty trial involving a plea of NGRI) to document their belief defendant was incompetent.

State v. Phelps (1991), 75 Ohio App. 3d 573 -- A criminal accused may not be tried or sentenced if he is incompetent. Defendant was found guilty of arson, but became incompetent before sentence was passed.

In re William S. (1997), 116 Ohio App. 3d 237 -- The right not to be tried while incompetent is as fundamental in juvenile proceedings as in criminal trials of adults. Finding of competency reversed as plain error as examiners applied the wrong legal standard. Court indicates that competency finding by a magistrate may require judicial adoption.

In re D.G. (1998), 91 Ohio Misc. 2d 226 -- The Due Process Clauses of the state and federal constitutions require a juvenile court to observe procedures sufficient to assure a juvenile is competent to stand trial. The adult competency statute may be applied to juvenile proceedings provided the court makes its assessment applying juvenile norms.

State v. Qualls (1988), 50 Ohio App. 3d 56 -- Headnote 1: "The issue of a defendant's competency to participate in probation revocation proceedings may be raised by the court or defendant, and the decision to hold a competency hearing must be made on a case-by-case basis in the exercise of the sound discretion of the court." Also see State v. Bell (1990), 66 Ohio App. 3d 52, 57-58.

State v. McKinney (October 31, 1978), Franklin Co. App. No. 78AP-121, unreported (1978 Opinions 3103, 3104) -- "Although a defendant must be able to counsel with his attorney in preparing his defense at the trial stage, the same necessity does not exist at the appellate level."

State v. Berry (1996), 74 Ohio St. 3d 1504 -- "A capital defendant is mentally competent to abandon any and all challenges to his death sentence, including appeals, state post-conviction collateral review, and federal habeas corpus, if he has the mental capacity to understand the choice between life and death and to make a knowing and intelligent decision not to pursue further remedies." Also see: State v. Berry (1997), 80 Ohio St. 3d 371, 375 -- "We...reject the notion that the bare possibility of a mental disorder's substantially affecting the condemn's decision making capacity is enough to require a finding of incompetence. Ultimately, the question is not whether a defendant 'may' lack the capacity to make a rational choice, but whether he in fact has that capacity." Rees v. Peyton (1966), 384 U.S. 312; Gilmore v. Utah (1976), 429 U.S. 1012.

State v. Ashworth (1999), 85 Ohio St. 3d 56 -- (1) At p. 64: "...(A) defendant cannot waive this court's review of his death sentence, though he can waive review of his conviction. R.C. 2929.05(A)." (2) Syllabus: "1. In a capital case, when a defendant wishes to waive the presentation of all mitigating evidence, a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary. 2. A defendant is mentally competent to forgo the presentation of mitigating evidence in the penalty phase of a capital case if he had the mental capacity to understand the choice between life and death and to make a knowing and intelligent decision not to pursue the presentation of evidence. The defendant must fully comprehend the ramifications of his decision, and must possess the ability to reason logically, i.e., to chose the means that relate logically to his ends." Also see State v. Cowans (1999), 87 Ohio St. 3d 68, 86: Ashworth is not prospective. Substantial compliance is not sufficient. See dissent.

State v. Wilcox (1984), 16 Ohio App. 3d 273 -- The entry of a plea of not guilty by reason of insanity does not by itself place the issue of the defendant's competency to stand trial before the court.

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State v. Hartman, 174 Ohio App. 3d 244, 2007-Ohio-6555 -- Though the defendant was represented by counsel who did not request a competency evaluation, the court was obliged to order an evaluation sua sponte where the defendant was a resident of a facility for people with retardation and developmental disabilities, was accompanied to arraignment by a minder from that facility, asked "what‘s going on" during the plea hearing, and was not allowed additional time to speak with his attorney.

State v. Were, 94 Ohio St. 3d 173, 2002-Ohio-481 -- Syllabus: "(1) Under former R.C. 2945.37(A) (now subsection [B]), a trial court must hold a competency hearing if a request is made before trial. (2) An evidentiary hearing is required whenever there are sufficient indicia of incompetency to call into doubt defendant's competency to stand trial. (State v. Barry [1995], 72 Ohio St. 3d 354, 650 N.E. 2d 433, followed.)" Capital defendant refused to talk to examiners. Court found him competent without a hearing.

In re Grimes 147 Ohio App. 3d 192, 2002-Ohio-1547 -- Deaf juvenile entered an admission to gross sexual imposition in Clark County and was returned to his home county for disposition. Materials reviewed by the sentencing judge included a prior psychological evaluation indicating limited signing skills and that the juvenile was not competent to stand trial on an earlier charge. Court was obligated to determine competency. Reversed as plain error and on delayed appeal.

State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304, ¶15-16 -- "The question of whether to hold a competency hearing after the commencement of trial is left to the court's discretion. State v. Rahman (1986), 23 Ohio St. 3d 146, 156...A defendant has a constitutional right to such a hearing only when there is sufficient 'indicia of incompetence' to alert the court that inquiry is needed to ensure a fair trial. State v. Berry (1995), 72 Ohio App. 3d 354, 359...Consideration in this regard might include supplemental medical reports, specific references by counsel to irrational behavior, and the defendant's demeanor during trial. See State v. Chapin (1981), 67 Ohio St. 2nd 437..." Court concludes defendant's behavior in the courtroom was merely rude.

In re B.H., 169 Ohio App. 3d 331, 2006-Ohio-5534 -- It was an abuse of discretion for a juvenile court judge to refuse to appoint an expert to assess the competency of a fourteen year old girl accused of rape. Though the judge may have been satisfied with the child's response to the standard inquiries from the bench the information provided by counsel, a guardian ad litem, and the custodial aunt required a professional evaluation.

State v. Borchers (1995), 101 Ohio App. 3d 157 -- Defendant's claim that he was not competent to enter guilty pleas found not to be supported by the record. Competency is presumed and no hearing on that issue is required when the issue has not been raised.

State v. Jackson (1973), 36 Ohio App. 2d 164, 171 -- Once the court has determined that the competency of a defendant is to be investigated, it must conduct a hearing to determine that issue. Compare State v. Bock (1986), 28 Ohio St. 3d 108 as to when error may be harmless. Also see State v. Bekesz (1991), 75 Ohio App. 3d 436, 441-443.

State v. Archie (September 27, 1990), Franklin Co. App. No. 89AP-804, unreported (1990 Opinions 4339) -- The defendant's demeanor and irrational behavior required inquiry by the court, sua sponte, into his competency, notwithstanding his attorney's silence and the defendant's statement "I don't want incompetence to be used by my attorney in this."

State v. Brown (1992), 84 Ohio App. 3d 414 -- Defendant received ineffective assistance of counsel where counsel failed to formally raise the issues of competency and sanity, or to examine the psychiatrist who had prepared an evaluation upon a court referral. The defendant later testified that he had no recollection of the incident leading to charges and that he had spent time talking to his mother who he believed was buried at a gas station in Lakewood.

State v. Chapin (1981), 67 Ohio St. 2d 437 -- Paragraph one of the syllabus: "An unqualified suggestion of defendant's incompetency to stand trial by defense counsel during trial without additional objective indications such as, but not limited to, supplemental medical reports, defendant's conduct at trial or specific reference to defendant's irrational behavior or the like does not meet the 'good cause shown' standard of R.C. 2945.37."

State v. Rubenstein (1987), 40 Ohio App. 3d 57, 60 -- A court should consider the following factors when determining whether or not to conduct a hearing on its own motion as to the defendant's competency to stand trial: "(1) doubts expressed by counsel as to the defendant's competence; (2) evidence of irrational behavior; (3) the defendant's demeanor at trial; and (4) prior medical opinion relating to competence to stand trial." Also see State v. Draughn (1991), 76 Ohio App. 3d 664.

State v. Kulp (1996), 110 Ohio App. 3d 144 -- Out of state trucker charged with felonious assault and fleeing was dissatisfied with the lawyer furnished by his union and proceeded to trial pro se. An already entered insanity plea and request for competency evaluation were ignored by the court and by appellate counsel. Court of Appeals sua sponte raises the issue and reverses.

State v. Corethers (1993), 90 Ohio App. 3d 428 -- Upon receipt of a report that the defendant's competency had been restored, case proceeded to trial without the competency hearing required by 2945.37. Based on the background of the case and the defendant's conduct during the trial, the error was not harmless.

State v. Bailey (1993), 90 Ohio App. 3d 58, 66-68 -- While the court is required to hold a hearing on competency if the issue is raised in a timely manner, it is not always required that a psychiatric examination be ordered.

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Standards; Determination

State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, ¶36-53 – Capital case defendant involved in the Lucasville riots previously obtained a reversal because the trial court had not conducted a competency hearing. State v. Were (2002), 94 Ohio St. 3d 173, 176-177. Again convicted he attacked the trial court‘s determination that he was competent. He refused to speak with evaluators so the court looked to other evidence of his past functioning. It discounted the conclusion of the defense expert noting he had failed his Ohio licensing test the first time he took it. Conclusion is that there was reliable and credible evidence supporting the finding of the trial court. Compare State v. White, 118 Ohio St. 3d 12, 2008-Ohio-1623 involving an Atkins determination.

State v. Ferguson, 108 Ohio St. 3d 451, 2006-Ohio-1502, ¶35-72 -- In a capital case the defendant proposed to plead guilty and waive mitigation. Both psychologists and psychiatrists are qualified to evaluate competency when the defendant has been prescribed psychotropic medications. It was not plain error to rule the defendant competent without ascertaining whether all testing had been completed. The report did not suffer from lack of information. Higher scrutiny is not required in determining the competency of a person actively seeking the death penalty.

State v. Jordan, 101 Ohio St. 3d 216, 2004-Ohio-783 -- The same standards apply to determinations of competency to stand trial and competency to waive the right to counsel. See Godines v. Moran (1993), 509 U.S. 389, 397. The opinion further concludes that the court properly accepted the defendant's waiver of his right to present mitigation evidence at the penalty phase of his capital trial. Also see State v. Mink, 101 Ohio St. 3d 350, 2004-Ohio-1580.

State v. Vrabel, 99 Ohio St. 3d 184, 2003-Ohio-3193, ¶ 25-34 -- Finding of competency upheld notwithstanding a motion for change of venue to the "spirit world" and listing the Queen of Hearts on the defense witness list. Incompetency is not the same as instability or insanity.

Cooper v. Oklahoma (1996), 517 U.S. 348 -- It is a violation of due process to require the defendant to establish by clear and convincing evidence that he is not competent to stand trial. The trial of a person who is not competent violates due process. The use of the clear and convincing evidence standard, instead of the usual preponderance, makes it possible to try a person who more likely than not is incompetent. [In Ohio, R.C. 2945.37(A) does not allocate the burden of proof, but requires the court to find by a preponderance of the evidence that the defendant is not competent.]

Dusky v. United States (1960), 362 U.S. 402 -- Federal rule is that orientation as to time and place, with some recollection of events is not sufficient to establish competency. Test is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him. Adopted, State v. Rahman (1986), 23 Ohio St. 3d 146, 156; State v. Marshall (1984), 15 Ohio App. 3d 105. Compare R.C. 2945.37(G): "...because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense."

Estelle v. Smith (1981), 451 U.S. 454 -- The Fifth Amendment extends to statements made to an examiner at a court ordered psychiatric evaluation to determine competency to stand trial, and to the use of any statements obtained, at either the guilt or penalty phase of a death penalty prosecution. For statements to be used, Miranda warnings must have been given. Note however that R.C. 2945.371(J) states: "No statement that a defendant makes in an evaluation or hearing...relating to the defendant's competence to stand trial or to the defendant's mental condition at the time of the offense charged shall be used in evidence against him on the issue of guilt in any criminal action or proceeding..."

Godinez v. Moran (1993), 509 U.S. 389 -- No higher standard of competency must be applied to the decisions to waive counsel or plead guilty, than is applied in determining competency to stand trial.

State v. Bolin (1998), 128 Ohio App. 3d 58 -- The competency standard for entry of a guilty plea is the same as applicable to competency to stand trial. Godinez v. Moran (1993), 509 U.S. 389 followed. Parties had presented expert testimony to the effect a lower standard applied. Reversed seven years after conviction on claim of ineffective assistance of counsel.

State v. Brooks (1986), 25 Ohio St. 3d 144, 151 -- Implied that amnesia alone does not make a person incompetent to stand trial. Also see United States v. Alley (8th Cir. 1981), 661 F. 2d 718, 722.

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Other issues

State v. Upshaw, 110 Ohio St. 3d 189, 2006-Ohio-4253 -- Syllabus: "An order finding a criminal defendant incompetent to stand trial and committing the defendant to an institution for the restoration of mental competency is a final appealable order under R.C. 2505.02(B)(4)."

Atkins v. Virginia (2002), 122 S.Ct. 2242 -- The execution of the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments.

State v. Bays, 159 Ohio App. 3d 469, 2005-Ohio-47 -- There is a significant difference between expert testimony offered for mitigation purposes and expert testimony offered for Atkins purposes. Although evidence adduced for mitigation purposes may be relevant, it was an abuse of discretion not to allocate funds for further evaluation. Also see State v. Hughbanks, 159 Ohio App. 3d 257, 2004-Ohio-6429.

State v. Lott, 97 Ohio St. 3d 303, 2002-Ohio-6625 -- In order to implement Atkins v. Virginia (2002), 122 S.Ct. 2242, the trial court is to conduct a hearing to determine whether the defendant is mentally retarded. Since Atkins recognizes a new federal or state right that applies retroactively a new postconviction petition is the avenue to relief. A three-part test is to be applied, looking to (1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, and (3) onset before age 18. The defendant must establish he is mentally retarded by a preponderance of the evidence. There is a rebuttable presumption that a defendant is not retarded is his IQ is above 70. Also see State v. Thomas, 97 Ohio St. 3d 309, 2002-Ohio-6624, ¶87-121.

Sell v. U.S. (2003), 123 S.Ct. 2174 -- In narrowly defined circumstances a court may order forced medication to restore competency. Such medication may be administered only to restore trial competency. Important governmental interests must be at stake, and forced medication must further those interests. In many cases remaining in an institution, untried, is a satisfactory arrangement. The medication must not have side effects interfering with the defendant's ability to assist counsel in preparing a defense. Lesser measures must be weighed. The medication must be medically appropriate.

State v. Upshaw, 166 Ohio App. 3d 95, 2006-Ohio-1819 -- Forced medication requires a petition from the treating institution. A letter is sufficient, even if not filed until after the hearing. Forced medication requires the following findings: (1) important governmental interests are at stake, but weighing the special circumstances of the case; (2) forced medication will significantly further those interests and is substantially likely to render the defendant competent; (3) forced medication is necessary to further those interests, but weighing less intrusive alternatives; and (4) it is medically appropriate. It was unreasonable to deny a brief continuance to permit the testimony of the defendant's treating psychiatrist.

State v. Muncie, 91 Ohio St. 3d 440, 2001-Ohio-93 -- Syllabus: "(1) A petition for forced medication under R.C. 2945.38 is a 'provisional remedy' ancillary to the criminal case undertaken by the state against an incompetent defendant. (R.C. 2905.02[A][3] construed.) (2) When a trial court orders an incompetent defendant to be forcibly medicated with psychotropic drugs in an effort to restore the defendant to competency, that order is final and appealable. (R.C. 2905.02[B][4] construed.) State v. Hunt (1976), 47 Ohio St. 3d 170, concerning orders relating to place of commitment, distinguished on the basis that forced medication represents a severe interference with interests protected by the Due Process Clause.

State v. Sullivan (2001), 90 Ohio St. 3d 502 -- Paragraph one of the syllabus: "R.C. 2945.38, as amended by Am.Sub.S.B. No. 285, is unconstitutional." Due process violation found in amended version of the statue requiring a period of treatment to restore competence even if there was no possibility it would be successful. Former version of the statute remains controlling. Also see Jackson v. Indiana (1972), 406 U.S. 715; Burton v. Reshetylo (1974), 38 Ohio St. 2d 35.

Youngstown v. Ortiz, 153 Ohio App. 3d 271, 2003-Ohio-2238 -- Defendant was charged with a first degree misdemeanor, found incompetent to stand trial, and sent off for a course of treatment. (1) There was a final appealable order. (2) The version of R.C. 2945.38 in effect at the time had been found unconstitutional and the new version had not gone into effect at the time of the order. The version before the version found unconstitutional is controlling. (3) Though it was unlikely the defendant would be restored to reason in the limited time allowed by the former statute, treatment could begin absent a sufficient showing of impossibility.

State v. Hall (2001), 141 Ohio App. 3d 561 -- Defendant was found incompetent to stand trial for causing explosion at a fireworks store than killed nine people. (1) No error in refusing to seal evaluation reports, which were not "medical records" and as judicial records or documents were subject to disclosure at common law and pursuant to R.C. 149.43. (2) No error in denial of request that defendant be excused from attending all future hearings.

State v. Salvatore, Franklin App. No. 02AP-573, 2003-Ohio-957 -- (1) Trial court properly found subject was in custody where she was being held in a secure portion of a mental hospital and was questioned by investigators authorized to be inside the facility. (2) History and nature of mental illness, medication, brevity of Miranda warnings, and termination of a prior interview supported the conclusion that the subject was not competent to waive her Miranda rights.

State v. Pruitt, Lucas App. No. L-03-1153, 2004-Ohio-7176 -- Reversed as waiver of right to counsel took place before determination of competency to stand trial. Proceedings also faulted for lack of a written waiver and permitting hybrid representation, with the defendant in effect serving as co-counsel.

State v. Palmer (1998), 84 Ohio St. 3d 103 -- Syllabus: "(1) Pursuant to R.C. 2945.72(B), the time within which an accused must be brought to trial is tolled from the date the accused files a motion challenging his or her competency to stand trial. (2) The tolling of R.C. 2945.72(B) continues until the trial court makes a competency determination and does not end when a competency examiner fails to issue a report within the time limits imposed by former R.C. 2945.371(D)." Also see State v. Jones (1997), 119 Ohio App. 3d 59, 65.

State v. Stanley (1997), 121 Ohio App. 3d 673 -- Indictment was dismissed on finding defendant was not competent and would not be restorable within one year. Two weeks later he was reindicted, and later found competent. (1) Law of the case doctrine does not apply. (2) R.C. 2945.38(H) governs reindictment. Though state had burden of proof that reindictment was proper, and record was incomplete, defendant loses because he failed to contend any of the conditions there listed barred reindictment. (3) Court may conduct more than one hearing concerning competency. (4) At 694: "A trial court may use its own observations of a defendant's demeanor when applying the competency criteria, and as long as the court's finding is supported by some competent, credible evidence, the fact the defendant's demeanor played a part in the court's decision is not reversible error." (5) Though defendant was dumb with limited signing ability, a juvenile, and of low intelligence, there was no abuse of discretion in refusal to have competency evaluations videotaped.

State v. Hunt (1976), 47 Ohio St. 2d 170 -- Finding that defendant is not competent to stand trial is not a final appealable order. Also see State v. Scott (1984), 20 Ohio App. 3d 215 -- Finding of competency is not a final appealable order.

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